{ "id": 4298921, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYSHAWN KELLER, Defendant-Appellant", "name_abbreviation": "People v. Keller", "decision_date": "2010-03-24", "docket_number": "No. 1\u201408\u20140870", "first_page": "654", "last_page": "664", "citations": [ { "type": "official", "cite": "399 Ill. App. 3d 654" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "229 Ill. App. 3d 677", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5216681 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/229/0677-01" ] }, { "cite": "195 Ill. App. 3d 335", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2492723 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "338" }, { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/195/0335-01" ] }, { "cite": "45 Ill. App. 3d 563", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2893461 ], "weight": 6, "year": 1976, "pin_cites": [ { "page": "565" }, { "page": "565" }, { "page": "565-66" }, { "page": "566" }, { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0563-01" ] }, { "cite": "165 Ill. App. 3d 342", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3613592 ], "year": 1988, "pin_cites": [ { "page": "344-45" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/165/0342-01" ] }, { "cite": "299 Ill. App. 3d 715", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 4279057 ], "weight": 15, "year": 2008, "pin_cites": [ { "page": "190" }, { "page": "190-91" }, { "page": "191" }, { "page": "191" }, { "page": "191" }, { "page": "191-92" }, { "page": "192" }, { "page": "194", "parenthetical": "Schmidt, J., concurring" }, { "page": "194", "parenthetical": "Schmidt, J., concurring" }, { "page": "192" }, { "page": "191" }, { "page": "191" }, { "page": "194", "parenthetical": "Schmidt, J., concurring" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/385/0187-01" ] }, { "cite": "373 Ill. App. 3d 1129", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4270375 ], "weight": 7, "year": 2007, "pin_cites": [ { "page": "1131" }, { "page": "1131" }, { "page": "1131" }, { "page": "1133" }, { "page": "1133" }, { "page": "1133" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/373/1129-01" ] }, { "cite": "221 Ill. 2d 282", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5703639 ], "year": 2006, "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/221/0282-01" ] }, { "cite": "191 Ill. 2d 493", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 229719 ], "year": 2000, "pin_cites": [ { "page": "503-04" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/191/0493-01" ] }, { "cite": "198 Ill. 2d 439", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29935 ], "year": 2002, "pin_cites": [ { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/198/0439-01" ] }, { "cite": "201 Ill. 2d 300", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477020 ], "year": 2002, "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0300-01" ] }, { "cite": "188 Ill. 2d 91", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 536114 ], "year": 1999, "pin_cites": [ { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0091-01" ] }, { "cite": "136 Ill. 2d 248", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3255149 ], "year": 1990, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/136/0248-01" ] } ], "analysis": { "cardinality": 882, "char_count": 26213, "ocr_confidence": 0.767, "pagerank": { "raw": 5.698382275515382e-08, "percentile": 0.3581865197546266 }, "sha256": "8dc5d83a8de85db52e052b03e3b02ee955c2858ae2c1b50f872719b6127da7b3", "simhash": "1:2b3e951233e55c77", "word_count": 4382 }, "last_updated": "2023-07-14T20:57:29.923092+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYSHAWN KELLER, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE MURPHY\ndelivered the opinion of the court:\nDefendant, Tyshawn Keller, pled guilty to possession of a controlled substance with intent to deliver and was sentenced to probation. After a hearing, defendant\u2019s probation was revoked. On appeal, he argues that this court should reverse the order revoking his probation because (1) his probation officer lacked the authority to file the petition for violation of probation and (2) the State failed to prove by a preponderance of the evidence that he failed to comply with the terms of his probation.\nI. BACKGROUND\nOn July 28, 2006, defendant pled guilty to possession of a controlled substance with intent to deliver. The court imposed a term of probation of 26 months. As part of the terms of his probation, defendant was ordered to obtain his GED, complete five days of the Sheriffs Work Alternative Program, submit to random drug testing, and pay $1,295 in fines.\nOn October 17, 2007, defendant\u2019s probation officer, Clyde Akbar, filed a \u201cPetition for Violation of Probation and Warrant\u201d because defendant failed to report on September 14, 2007, did not complete his GED, and had not paid the fines. The petition requested that the court issue a warrant for \u201cdefendant to appear and answer the alleged violations in open court at a hearing to determine whether or not the probation shall be revoked and if so, what new sentence and modifications shall be imposed.\u201d\nAt the hearing, the assistant State\u2019s Attorney presented the testimony of Akbar. Akbar testified that he was the probation officer assigned to supervise defendant. On September 14, 2007, defendant had an appointment to report to Akbar\u2019s office and complete a random drug test, but defendant failed to appear. Akbar notified defendant of the September 14 appointment at their previous meeting on August 7, 2007.\nDefendant testified that Akbar told him he had until 2:30 p.m. on September 14 to report. Defendant arrived at 2:30 p.m., but Akbar was not there. He spoke to a woman in the office next to Akbar\u2019s, who said she would leave Akbar a message saying that defendant was there. He also left \u201cmillions\u201d of voice messages for Akbar.\nThe court noted Akbar\u2019s testimony that defendant failed to report on September 14, 2007, and that the defendant had no corroboration that he reported at 2:30 p.m. that day. The trial court therefore found that defendant violated his probation by missing his scheduled appointment with Akbar. Defendant was then sentenced to three years\u2019 imprisonment for the underlying conviction.\nII. ANALYSIS\nA. Authority of Probation Officer to File Petition\nDefendant contends that this court should reverse the order revoking his probation because Akbar, defendant\u2019s probation officer, lacked the authority to file the petition to revoke probation. He cites section 12 of the Probation and Probation Officers Act (730 ILCS 110/12 (West 2006)) (the Act), which delineates a probation officer\u2019s authority but does not include the authority to file a petition to revoke probation. He also cites section 5 \u2014 6\u20144 of the Unified Code of Corrections (730 ILCS 5/5 \u2014 6\u20144 (West 2006)), which he says does not specify who has the authority to file a petition to revoke probation. Defendant argues that, in contrast, section 3 \u2014 9005 of the Counties Code specifically states that \u201c[t]he duty of each State\u2019s attorney shall be: *** [t]o commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned.\u201d 55 ILCS 5/3\u2014 9005(a)(1) (West 2006).\nIn People v. Dinger, 136 Ill. 2d 248, 259 (1990), our supreme court found that \u201cthe Unified Code of Corrections contemplates the revocation of an offender\u2019s probation only upon the filing by a proper party of a petition charging a violation of a condition of probation.\u201d As explained in detail below, we find, based on the language of section 5 \u2014 6\u20144 of the Unified Code of Corrections (730 ILCS 5/5 \u2014 6\u20144 (West 2006)), that a probation officer is a \u201cproper party\u201d to file such a petition.\nThe primary rule of statutory construction is to ascertain and give effect to the intent of the legislature. People v. Whitney, 188 Ill. 2d 91, 97 (1999). The language of the statute must be afforded its plain, ordinary, and popularly understood meaning. In re Detention of Lieberman, 201 Ill. 2d 300, 308 (2002). The court will not depart from the plain meaning of a statute by reading into it exceptions, limitations, or conditions that conflict with the express legislative intent. Petersen v. Wallach, 198 Ill. 2d 439, 446 (2002). In construing a statute, we presume that the General Assembly, in its enactment of legislation, did not intend absurdity, inconvenience, or injustice. Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 503-04 (2000). As defendant\u2019s argument raises a question of law, we review the trial court\u2019s decision de novo. People v. Caballes, 221 Ill. 2d 282, 289 (2006).\nWe decline to follow the two cases from other districts that defendant relies on in support of his argument: People v. Kellems, 373 Ill. App. 3d 1129 (2007), and People v. Herrin, 385 Ill. App. 3d 187 (2008).\nIn Kellems, a probation officer filed a petition to revoke the defendant\u2019s supervision, alleging that the defendant violated two terms of the supervision order. The defendant filed a motion to dismiss the petition on the ground that a probation officer does not have the authority to file such a petition. The trial court rejected the defendant\u2019s argument, but on appeal, the Fourth District reversed. Kellems first noted that section 12 of the Act, which includes the list of duties and responsibilities of probation officers, does not contain a provision empowering a probation officer to file a petition to revoke supervision. Kellems, 373 Ill. App. 3d at 1131, citing 730 ILCS 110/12 (West 2004). It further noted that section 5 \u2014 6\u20144 of the Unified Code of Corrections (730 ILCS 5/5 \u2014 6\u20144 (West 2004)) does not specify who has the authority to file a petition to revoke supervision. Kellems, 373 Ill. App. 3d at 1131. Finally, section 3 \u2014 9005 of the Counties Code (55 ILCS 5/3 \u2014 9005(a)(1) (West 2006)) states that the \u201cduty of each State\u2019s Attorney shall be *** [t]o commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned.\u201d See Kellems, 373 Ill. App. 3d at 1131.\nKellems relied on People v. Birt, 274 Ill. App. 3d 805 (1995). In Birt, the State\u2019s Attorney filed a motion to modify the terms of the defendant\u2019s probation. The defendant argued that the trial court committed reversible error in granting the State\u2019s motion to amend the conditions of his probation because section 5 \u2014 6\u20144(f) did not give the State\u2019s Attorney the authority to file such a motion. At that time, section 5 \u2014 6\u20144(f) provided that the \u201cconditions of probation, of conditional discharge and of supervision may be modified by the court on motion of the probation officer or on its own motion or at the request of the offender after notice and a hearing.\u201d 730 ILCS 5/5 \u2014 6\u2014 4(f) (West 1992). The Fourth District disagreed, noting that because \u201ca motion to amend probation constitutes a continuation of a criminal case, the People of the State of Illinois continue to be represented by the State\u2019s Attorney *** concerning such a motion.\u201d Birt, 274 Ill. App. 3d at 808, citing 55 ILCS 5/3 \u2014 9005(a)(1) (West 1992). \u201cWe suggest this point is so basic that the legislature did not deem it necessary to mention the State\u2019s Attorney as among those who could file a motion pursuant to section 5 \u2014 6\u20144(f) of the Code.\u201d Birt, 274 Ill. App. 3d at 808.\nKellems concluded, \u201cConsistent with our reasoning in Birt, *** if the legislature had intended anyone other than the State\u2019s Attorney (whose authority is necessarily implied) to have authority to file a petition to revoke supervision, it would have said so. However, the legislature has not chosen to explicitly empower probation officers with such authority.\u201d Kellems, 373 Ill. App. 3d at 1133. Therefore, it found that the probation officer lacked the authority to file a petition to revoke the defendant\u2019s supervision. Kellems, 373 Ill. App. 3d at 1133.\nPeople v. Herrin, 385 Ill. App. 3d 187 (2008), agreeing with the reasoning of Kellems, concluded that a petition to revoke probation filed by the probation officer was void ab initio because the probation officer lacked the authority to file it. Herrin, 385 Ill. App. 3d at 190. The Third District relied on section 3 \u2014 9005 of the Counties Code, which grants State\u2019s Attorneys the authority to commence and prosecute all actions, and 5 \u2014 6\u20144(a) of the Unified Code of Corrections, which \u201cmentions a petition \u2018charging a violation of a [probation] condition\u2019 without specifically indicating who is authorized to file the pleading.\u201d Herrin, 385 Ill. App. 3d at 190-91, quoting 730 ILCS 5/5 \u2014 6\u20144(a) (West 2006).\nThe Herrin court rejected the argument that subsections 5 \u2014 6\u2014 4(f) and (i) dictated a different result. Herrin, 385 Ill. App. 3d at 191. The \u201cgeneral grant of institutional pleading authority\u201d in subsection 5 \u2014 6\u20144(f) \u201cdoes not answer the specific question of who can file the pleading in court.\u201d Herrin, 385 Ill. App. 3d at 191. It also concluded that, since the July 31, 1996, amendment to subsection 5 \u2014 6\u20144(f), \u201c[probation officers have *** been removed from the pleading equation.\u201d Herrin, 385 Ill. App. 3d at 191. Section 5 \u2014 6\u20144(f) provides that the \u201cconditions of probation, of conditional discharge, of supervision, or of a sentence of county impact incarceration may be modified by the court on motion of the supervising agency or on its own motion or at the request of the offender after notice and a hearing.\u201d 730 ILCS 5/5 \u2014 6\u20144(f) (West 2006). Subsection 5 \u2014 6\u20144(i) provides, in relevant part, \u201cInstead of filing a violation of probation ***, an agent or employee of the supervising agency *** may serve on the defendant a Notice of Intermediate Sanctions.\u201d 730 ILCS 5/5 \u2014 6\u20144(i) (West 2006). The court found that subsection 5 \u2014 6\u20144(i) \u201ccould have been worded, \u2018Instead of the State\u2019s attorney filing a violation of probation ***,\u2019 but such wording was unnecessary\u201d because the State\u2019s Attorney\u2019s role as prosecutor of such actions is a foregone conclusion that does not need to be reiterated every time a statute mentions filings to initiate proceedings. Herrin, 385 Ill. App. 3d at 191-92. Herrin concluded, \u201cThere can be no question that the probation officer\u2019s pleading in the instant case amounted to law practice. Yet the probation officer lacks a law license. His actions not only constituted the unauthorized practice of law but also usurped the statutory prerogative of the State\u2019s Attorney.\u201d Herrin, 385 Ill. App. 3d at 192.\nWe disagree with the courts\u2019 reasoning in Kellems and Herrin. As Justice Schmidt noted in his special concurrence to Herrin, \u201cThe term of art, \u2018petition to revoke,\u2019 is used by many in the criminal justice arena. However, a petition to revoke is actually a petition charging a violation of probation that simply requests revocation as a consequence of the alleged violation.\u201d Herrin, 385 Ill. App. 3d at 194 (Schmidt, J., concurring). Justice Schmidt found this distinction \u201csomewhat significant\u201d in light of the Kellems court\u2019s proclamation that a probation officer lacks the \u201c \u2018authority to file a petition to revoke defendant\u2019s supervision.\u2019 \u201d Herrin, 385 Ill. App. 3d at 194 (Schmidt, J., concurring), quoting Kellems, 373 Ill. App. 3d at 1133.\nFurthermore, the Herrin majority cites no authority for the proposition that a probation officer engages in the unauthorized practice of law when he or she files a petition for violation of probation. See Herrin, 385 Ill. App. 3d at 192. A probation officer is a judicial employee. 730 ILCS 110/9b(3) (West 2006). See also People v. Hammond, 397 Ill. App. 3d 342 (2009). Thus, Akbar was not engaging in the unauthorized practice of law when he filed the petition for violation of defendant\u2019s probation; instead, he was acting as an agent of the trial court.\nIn addition, the Herrin court\u2019s interpretation of subsections 5 \u2014 6\u2014 4(f) and (i) is faulty. The Herrin majority contends that the \u201cgeneral grant of institutional pleading authority\u201d in subsection 5 \u2014 6\u20144(f) \u201cdoes not answer the specific question of who can file the pleading in court.\u201d Herrin, 385 Ill. App. 3d at 191. Section 5 \u2014 6\u20144(f) provides that the \u201cconditions of probation, of conditional discharge, of supervision, or of a sentence of county impact incarceration may be modified by the court on motion of the supervising agency or on its own motion or at the request of the offender after notice and a hearing.\u201d 730 ILCS 5/5 \u2014 6\u20144(f) (West 2006). In this case, the \u201csupervising agency\u201d is the probation department, which necessarily includes probation officers, since they oversee a defendant\u2019s probation. Thus, it is clear to this court that the \u201csupervising agency\u201d listed in subsection (f) must include probation officers, as they are agents of the probation department.\nSubsection 5 \u2014 6\u20144(i) provides, in relevant part, \u201cInstead of filing a violation of probation ***, an agent or employee of the supervising agency *** may serve on the defendant a Notice of Intermediate Sanctions.\u201d 730 ILCS 5/5 \u2014 6\u20144(i) (West 2006). Herrin posits that the opening phrase of subsection 5 \u2014 6\u20144(i) could have been worded, \u201cInstead of the State\u2019s attorney filing a violation of probation,\u201d but that such wording was unnecessary, as the State\u2019s Attorney\u2019s role is a \u201cforegone conclusion.\u201d Herrin, 385 Ill. App. 3d at 191. We find that such an interpretation is ungrammatical and contrary to the clear language of the statute, as the participial phrase\u2019s proximity to \u201can agent or employee of the supervising agency\u201d can only mean that it is modifying \u201can agent or employee of the supervising agency.\u201d Therefore, a probation officer, in this case an agent of the Cook County Adult Probation Department, is permitted to file a petition for violation of probation. As Justice Schmidt stated, \u201cI can think of no rational reason why the legislature would allow a \u2018supervising agency\u2019 to make a motion to modify probationary conditions in one breath, and deny the same agency the ability to file a petition charging a violation of a condition in another.\u201d Herrin, 385 Ill. App. 3d at 194 (Schmidt, J., concurring). If the legislature had intended that only State\u2019s Attorneys would be permitted to file petitions for violation of probation, it would have specified as much.\nKellems did not analyze subsections 5 \u2014 6\u20144(f) and (i). Because subsections 5 \u2014 6\u20144(f) and (i) make clear that a probation officer may file a petition for violation of probation, their omission from the Kellems court\u2019s analysis is significant.\nFurthermore, the Kellems court, like defendant here, cites section 12 of the Act, which delineates a probation officer\u2019s authority but does not include the authority to file a petition to revoke probation (730 ILCS 110/12 (West 2006)), and section 3 \u2014 9005 of the Counties Code, which provides that \u201c[t]he duty of each State\u2019s attorney shall be: *** [t]o commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned\u201d (55 ILCS 5/3 \u2014 9005(a)(1) (West 2006)). While these statutes list the duties of probation officers and State\u2019s Attorneys, neither specifically mentions petitions for violation of probation. Section 5 \u2014 6\u20144, on the other hand, does.\nWe note that there is no functional difference between a petition for violation and a petition to revoke. Indeed, the Unified Code of Corrections (730 ILCS 5/5 \u2014 6\u20141 et seq. (West 2006)) does not address whether anyone may file a petition to revoke probation. Section 5 \u2014 6\u20144 outlines the procedure for a violation of probation, but it does not mention a \u201cpetition to revoke\u201d; instead, it allows the filing of a \u201cpetition *** charging a violation of a condition.\u201d 730 ILCS 5/5 \u2014 6\u2014 4(a) (West 2006). When such a petition is filed, the trial court may (1) order that the probation department or other agency that handles probation matters issue a notice to the offender to report; (2) order a summons to the offender to be present for hearing; or (3) order a warrant for the offender\u2019s arrest if there is a danger that he will flee or cause serious harm to others. 730 ILCS 5/5 \u2014 6\u20144(a)(1) through (a)(3) (West 2006). The court \u201cshall conduct a hearing of the alleged violation,\u201d where the State \u201chas the burden of going forward with the evidence and proving the violation by the preponderance of the evidence.\u201d 730 ILCS 5/5 \u2014 6\u20144(b), (c) (West 2006). If the court finds that the defendant violated a condition of probation, it may, inter alia, revoke probation and impose any other sentence that was originally available. 730 ILCS 5/5 \u2014 6\u20144(e) (West 2006).\nThe Fourth District recently interpreted section 5 \u2014 6\u20144(i) to mean that probation officers may seek intermediate sanctions even when to do so is against the wishes of the State\u2019s Attorney. In People v. Hammond, 397 Ill. App. 3d 342 (2009), the State\u2019s Attorney of Livingston County filed a petition for the revocation of probation after the three defendants violated the conditions of their probation. The trial courts dismissed the petitions because the defendants had accepted and completed the intermediate sanctions offered by their probation officers. In one of the cases, the trial court had directed the probation officer to offer the defendant an administrative sanction. On appeal to the Fourth District, the State argued that the trial courts\u2019 interpretation of section 5 \u2014 6\u20144(i) violated the separation of powers doctrine.\nThe State in Hammond argued that it had veto power over the sanctions offered to the defendant. It cited section 5 \u2014 6\u20144(i), which provides in relevant part that the probation officer may serve on the defendant a notice of intermediate sanctions. Section 5 \u2014 6\u20144(i) continues, \u201cIf the intermediate sanctions are rejected or the defendant does not respond to the Notice, a violation of probation, conditional discharge, supervision, or a sentence of county impact incarceration shall be immediately filed with the court. The State\u2019s Attorney and the sentencing court shall be notified of the Notice of Sanctions.\u201d 730 ILCS 5/5 \u2014 6\u20144(i) (West 2006). The Fourth District rejected the State\u2019s argument, concluding,\n\u201cFrom the mere sentence, \u2018The State\u2019s Attorney and the sentencing court shall be notified of the [n]otice of [s]anctions,\u2019 it is quite a stretch to infer that the State\u2019s Attorney has veto power over the notice of sanctions. The legislature saw the need to apprise the State\u2019s Attorney of the notice; otherwise, the State\u2019s Attorney might file a petition for revocation while the defendant is faithfully complying with the sanctions. If the legislature, however, had intended to give the State\u2019s Attorney the power to disapprove the intermediate sanctions after the probation department offered them, the legislature surely would not have left such an important point to implication.\u201d Hammond, 397 Ill. App. 3d at 349.\nWe, like the Hammond court, note that a probation officer is a judicial employee. Section 9b(3) of the Probation and Probation Officers Act (730 ILCS 110/9b(3) (West 2006)) provides that \u201cprobation officers are judicial employees designated on a circuit wide or county basis and compensated by the appropriate county board or boards.\u201d In Hammond, the State argued that, by enacting section 5 \u2014 6\u20144(i), the legislature infringed on the executive branch, of which the State\u2019s Attorney is an officer, by transferring an essential function of the executive branch, i.e., the decision of whether to prosecute a technical violation of the conditions of probation, to the judicial branch. The court found that a probation officer is a judicial employee, so \u201cthe action of the probation officer was the action of the judicial branch.\u201d Hammond, 397 Ill. App. 3d at 352, citing 730 ILCS 110/9b(3) (West 2008). The State argued that the judicial branch exercised its power without the State\u2019s Attorney\u2019s input. The court rejected the argument, finding that the granting, denying, modifying, or discontinuing probation is an essential judicial function, so the State\u2019s Attorney never had the power to decide what ultimately should be done about a technical violation of probation. Hammond, 397 Ill. App. 3d at 353.\nHere, the trial judge sentenced defendant to probation. The probation department, under the auspices of the judiciary, inter alia, \u201ctake[s] charge of and watch [es] over all persons placed on probation under such regulations and for such terms as may be prescribed by the court.\u201d 730 ILCS 110/12(5) (West 2006). This language clearly supports our construction of the Act to mean that when a defendant violates the conditions of his probation, a probation officer should be permitted to file a petition informing the court, defendant, and State\u2019s Attorney of such.\nWe reject the holdings in Kellems and Herrin and find that the plain language of section 5 \u2014 6\u20144 demonstrates that a probation officer may file a petition for violation of probation.\nB. Manifest Weight of the Evidence\nDefendant also argues that the State failed to prove by a preponderance of the evidence that he failed to comply with his probation. At a probation-revocation proceeding, the State has the burden of proving the violation by a preponderance of the evidence. 730 ILCS 5/5 \u2014 6\u20144(c) (West 2006). \u201cThe determination to terminate probation rests within the discretion of the trial court, and, unless the determination was against the manifest weight of the evidence, an appellate court will not disturb the trial court\u2019s ruling.\u201d People v. Taube, 299 Ill. App. 3d 715, 721 (1998). A decision is against the manifest weight of the evidence when a contrary result is clearly evident. People v. Mat thews, 165 Ill. App. 3d 342, 344-45 (1988). The decision to terminate is not per se against the manifest weight of the evidence simply because there is a conflict in the evidence. Taube, 299 Ill. App. 3d at 721.\nDefendant testified at the hearing that he had until 2:30 p.m. on September 14, 2007, to report. He stated that he went to Akbar\u2019s office at 2:30 p.m., but Akbar was not there, so he left a message with the woman in the next office. Defendant also testified that he left messages on Akbar\u2019s voice mail. Defendant argues on appeal that Akbar did not testify that he had given defendant a specific appointment time that he missed, did not testify about the office hours he kept on September 14, 2007, and did not confirm or deny that he received voice messages from defendant. Defendant argues, therefore, that his testimony was unimpeached and unrebutted.\nDefendant relies on People v. Leigh, 45 Ill. App. 3d 563 (1976). In Leigh, the trial court revoked the defendant\u2019s probation based on proof that she committed felony theft at the currency exchange where she worked. On appeal, the court reversed, noting that the State did not produce eyewitnesses who could establish that the defendant took money from the currency exchange. Leigh, 45 Ill. App. 3d at 565. There was testimony that shortages occurred regularly, and disputed evidence existed as to whether the defendant admitted taking the money. Leigh, 45 Ill. App. 3d at 565. The court also noted that the defendant was not impeached by the State after she denied making admissions to a detective two months after the occurrence. Leigh, 45 Ill. App. 3d at 565-66. \u201cThe most favorable statement that we can make regarding the State\u2019s evidence is that it is vague.\u201d Leigh, 45 Ill. App. 3d at 566. Accordingly, the court reversed the order revoking the defendant\u2019s probation. Leigh, 45 Ill. App. 3d at 566.\nHere, there was no confusion or vagueness in the State\u2019s case. Akbar unambiguously testified that defendant had an appointment on September 14, 2007, to report to Akbar\u2019s office and complete a random drug test, but that defendant failed to appear. To the extent that Akbar\u2019s and defendant\u2019s testimony was inconsistent, \u201cconflicting evidence alone is insufficient to overcome a finding of a violation of probationary conditions.\u201d People v. Durk, 195 Ill. App. 3d 335, 338 (1990). See also Taube, 299 Ill. App. 3d at 721. As the court noted in Durk, \u201cThe trial court was in a far better position than this court to weigh the credibility of the witnesses.\u201d Durk, 195 Ill. App. 3d at 338.\nDefendant also claims that the trial court shifted the burden from the State to him by commenting on the lack of corroboration for defendant\u2019s version of events that day. We agree with the State that the trial court was simply remarking on \u201cthe court\u2019s weighing of the evidence.\u201d Furthermore, People v. Williams, 229 Ill. App. 3d 677 (1992), the case defendant relies on, is distinguishable. The trial court in that case told the defendant that he had the burden to prove that he was in compliance with the terms of his probation, and it did not require the State to present any evidence. Williams, 229 Ill. App. 3d at 679. Here, the State did present evidence, which was sufficient to prove that defendant violated the terms of his probation.\nAccordingly, we conclude that the trial court\u2019s finding was not contrary to the manifest weight of the evidence.\nIII. CONCLUSION\nFor the foregoing reasons, we affirm the trial court\u2019s order revoking defendant\u2019s probation.\nAffirmed.\nQUINN and COLEMAN, JJ., concur.\nIn Cook County, probation officers do not monitor defendants on supervision. This point was not raised in Kellems.", "type": "majority", "author": "PRESIDING JUSTICE MURPHY" } ], "attorneys": [ "Michael J. Pelletier and Linda Olthoff, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Anita M. Alvarez, State\u2019s Attorney of Chicago (James E. Fitzgerald, Amy Watroba Kern, and Mari R. Hatzenbuehler, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYSHAWN KELLER, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201408\u20140870\nOpinion filed March 24, 2010.\nMichael J. Pelletier and Linda Olthoff, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nAnita M. Alvarez, State\u2019s Attorney of Chicago (James E. Fitzgerald, Amy Watroba Kern, and Mari R. Hatzenbuehler, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0654-01", "first_page_order": 670, "last_page_order": 680 }